JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2012] WASCA 193
CORAM: PULLIN JA
NEWNES JA
HEARD: 7 AUGUST 2012
DELIVERED : 10 OCTOBER 2012
FILE NO/S: CACV 7 of 2012
CACV 12 of 2012
BETWEEN: KOK YONG TEY
Appellant
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent
ON APPEAL FROM:
For File No : CACV 7 of 2012
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER GETHING
Citation :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 3] [2012] WADC 3
File No :APP 44 of 2009
For File No : CACV 12 of 2012
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER GETHING
Citation :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2012] WADC 19
File No :APP 44 of 2009
Catchwords:
Practice and procedure - Appeal against dismissal of application for review of taxation of costs - Appeal against costs order on application for review - Application by respondent to strike out appeal as having no reasonable prospect of success - Effect of O 66 r 48 of the Rules of the Supreme Court 1971 (WA) -Appeal without merit
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 48
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr B W Ashdown
Solicitors:
Appellant: In person
Respondent: De Vita & Dixon
Case(s) referred to in judgment(s):
Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621
Bendir v Anson [1936] 3 All ER 326
Brookvista Pty Ltd v Meloni [2009] WASCA 180
House v The King (1936) 55 CLR 499
Lyon v Mercer (1823) 1 Sim & St 357; 57 ER 143
Mentors Ltd v Evans [1912] 3 KB 174
Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661B, 6 November 1996)
Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248
Schweppes Limited v Archer (1934) 34 SR (NSW) 181
Tey v Optima Financial Group Pty Ltd [2010] WADC 98
Tey v Optima Financial Group Pty Ltd [2010] WASCA 219
Tey v Optima Financial Group Pty Ltd [2011] HCASL 41
Tey v Optima Financial Group Pty Ltd [2012] WASCA 192
Tey v Optima Financial Group Pty Ltd [No 2] [2011] WADC 129
Tey v Optima Financial Group Pty Ltd [No 2] [2012] WADC 19
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113
JUDGMENT OF THE COURT: On 19 January 2012, in the District Court, Commissioner Gething dismissed an application by the appellant for the review of a taxation of costs by a deputy registrar. His Honour ordered the appellant to pay the respondent's costs of the review. Subsequently, on 3 February 2012, the Commissioner fixed the costs of the review in the sum of $5,332.25.
The appellant has appealed to this…
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- Case
- [2012] WASCA 193
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were twofold: firstly, whether the appeal against the dismissal of the review application had any prospect of success; and secondly, whether the appeal against the costs order had any prospect of success. The court examined the grounds of appeal provided by the appellant and assessed whether any of them had a reasonable chance of altering the outcome of the earlier decisions.
The court found that the appellant's appeal against the dismissal of the review application was without merit. The appellant's objections to the taxation of costs were considered and rejected, and she was given the opportunity to seek judicial review, which she did. However, the court determined that none of the grounds of appeal had any prospect of success. Regarding the costs order, the court similarly found that the appeal lacked merit, particularly as it sought to reargue matters already decided. The appellant's complaints about the review process were deemed irrelevant to the present appeal.
The court dismissed both appeals, finding that they had no reasonable prospect of success and were therefore an unnecessary use of judicial resources. The respondent's application to strike out the appeals was granted, and the appellant was ordered to pay the respondent's costs of the appeals.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
This ground proceeds upon a misconception as to the process of review of a taxation of costs and must fail. The practice is that a taxing officer will not sign a certificate of taxation so soon as to deprive a party of the opportunity to lodge an objection to the taxation. A certificate which is signed so quickly as to deprive a party of that opportunity is liable to be set aside: Australian Coal & Shale Employees’ Federation v Commonwealth (624). No such issue arose in this case. The appellant was given time to lodge objections and did so. Those objections were considered and rejected by the taxing officer. It was then incumbent upon the taxing officer to sign the certificate. In fact, he did not do so until some months later, on 1 November 2011. The appellant had 14 days after the certificate was signed within which to seek review by a judge under O 66 r 55. She availed herself of that process. No question of prejudice to the appellant arises. In our view, none of the grounds of appeal have any prospect of success and this appeal should be dismissed. We turn then to the appeal against the costs order made by the Commissioner in respect of the review. The appellant relies on the following grounds of appeal:1.The learned Commissioner erred, as a matter of law in the exercise of his discretion by failing to accept that Judge Davis' order could only mean that only [sic] the costs of striking out the appeal were not recoverable. Therefore the appellant's application for review of taxation filed on 13 September 2011 should not be dismissed.2.That Judge Davis' order is not subject to interpretation. By costs of the appeal her Honour meant getting up costs at minimal costs. The Commissioner erred in the exercise of his discretion by not so finding.3.The learned Commissioner awarded to the respondent fixed costs for the review in the sum of $5332.25. This amount is excessive, subjective and unjust. His Honour erred in the exercise of his discretion by accepting that [the respondent's solicitor's] affidavit of 12 January 2012 on pages 49 and 50 satisfied him, a sum of $4684.25 [sic $4694.25] to be included in the fixed costs. The difference was $638.00.(a)The appellant was prejudiced.(b)Also this appeal should be put to a halt until the appellant's s 36 application filed on 26 March 2012 in the Supreme Court of Western Australia is heard and delivered. These grounds do not relate to the costs of the review but seek to argue again complaints about the review itself. They are irrelevant to this appeal. Moreover, they have been dealt with above. This ground is in three parts. The first part is, in effect, a contention that the Commissioner erred in the exercise of his discretion in fixing the respondent's costs of the review in the sum of $5,332.25. However, it is unclear whether the appellant's complaint concerns to some specific error relating to the affidavit of the respondent's solicitor or whether it is wider than that. Regrettably, the appellant's written submissions are, with respect, at the least obscure. Her oral submissions did not provide any greater assistance.